Brian Lenihan Jnr (Dublin West, Fianna Fail)

I could be even more heretical for a Fianna Fáil Deputy and confess that I have always had a secret admiration for Daniel O'Connell in this respect. He was a very good Irish speaker, by the way. He did not lose his Irish by speaking English but he did believe that English was the language of the world. It is certainly the language of the European world and that is something to which we should attend.

The treaty will help the European Union to become more democratic by strengthening the role of national parliaments and giving them a direct say in European legislation. That is very important because one of the difficulties with the European Parliament is that it does not derive its mandate from a regular election in the national electoral timescale. As a result, with the best will in the world, European parliamentarians are often seen as detached from the concerns of domestic electorates. I believe it is a good move in this treaty to associate the national parliaments more closely with the legislative process in Europe.

The treaty also gives national parliaments a right of veto on any proposal to change the voting rules in the European Council or the Council of Ministers from unanimity to qualified majority voting. There is also a citizens initiative and it is important in a block the size of the European Union that everything possible is done to link the citizen with the Union. A very significant element in this regard is the provision to give legal status to the Charter of Fundamental Rights. This means that, just as in our Constitution where the duties and powers of the Government are circumscribed by the fundamental rights of the citizen, in the European arrangement, the duties and rights of the European institutions are circumscribed by a respect for the fundamental rights of the European citizen.

This is one of the most positive features of this treaty but it will be misrepresented. It will be suggested that this is an erosion of the guarantees in our Constitution but it is not. In fact, one of the main objectives of our diplomacy in the negotiation of this treaty was to ensure that the text leaves no equivocation or doubt on the point that the European guarantees are in the European legal order and we will continue to have national guarantees in our national legal order. That is a fundamental point in relation to this treaty and it is right that a community that will be based on the rule of law should allow its citizens to invoke fundamental rules of law to invalidate decisions of that Union that infringe the basic rights of the European citizen. That is a very positive development in this treaty and is the one development that does bring the individual citizen closer to the European Union because it allows the individual to challenge, on his or her own, a decision of the European Union which he or she believes has fundamentally trenched upon his or her rights.

When one looks at the arguments that we are faced with in the referendum — it is a good exercise to hold a referendum because it forces us to engage with the public and their concerns about Europe — so many of them relate to fundamental rights. People argue that they should have the right to cut turf, catch fish, harvest seaweed, obtain planning permission and so forth, but that there is a European rule which obstructs this. However, under this treaty, people will be entitled to challenge the European Union on the basis of their own individual rights. Intellectually, that is a very important change for Europe to make because at present the difficulty is that the power arrangements are seen as remote and bureaucratic as far as the individual citizen is concerned. At present, the European citizen in the European legal order does not have the right to invalidate a decision taken within the European legal order by the authorities. Our citizens do have that right under our Constitution in relation to decisions we take in this House. That, along with our electoral system, has brought the citizen very close to the Irish State. It is worth looking at this as a positive feature in this campaign. It is not one we should skirt around. We should be open about it.

I regretted very much the fact that the United Kingdom decided to opt out of the Charter on Fundamental Rights. There was no reason to do so, but it did. We did not follow the United Kingdom in that respect, even though we were offered that facility. I would have been very saddened if we had exercised that option because it is one of the most crucial reasons for voting "Yes" in the context of bringing Europe closer to the citizen. It makes the Union more democratic and more effective.

During the negotiations, Ireland ensured that certain national vital interests were secured in diplomatic terms, including the issue of unanimity on taxation and the question of our possible involvement in military matters. On all of these matters we were essentially given the right to say "Yes" or "No" under this treaty. Other Ministers have dealt with that issue already.

I wish to turn to the area of justice because there was some debate about it in the process leading up to the ratification of the treaty. Ireland has consistently and strongly supported EU measures to tackle organised crime and terrorism and to strengthen law enforcement co-operation. That will continue to be the case when the reform treaty is ratified. I assure the House that Ireland will be participating in European measures in police co-operation and in justice to the maximum possible extent. Examples of the benefits of EU membership in the justice area include the development of the European arrest warrant, which ensures criminals cannot escape justice by fleeing to another member state, and the establishment of Europol, the European police agency, which gives practical support to national police forces in tackling cross-border crime. The European Union is also active in the fight against terrorism and organised crime, including drug trafficking.

The reform treaty provides generally for majority voting in the field of criminal law and police co-operation. However, because of the especially sensitive nature of criminal law co-operation and the fact we have a distinctive common law system, we decided to avail of a special arrangement which would allow the State to participate in EU criminal law and police co-operation measures on a case by case basis.

It is correct that in the original draft treaty, both the United Kingdom and Ireland bound themselves to qualified majority voting in this area. The United Kingdom, however, secured in the negotiations last year, at the initiative of the German Chancellor, a concession whereby, in effect, it was allowed to opt out of qualified majority voting in this area. That put us in a very difficult position in a European context. We were happy with qualified majority voting with the United Kingdom on board because we both share a very similar legal system and legal culture. However, it would have been a big ask for Ireland to participate in qualified majority voting on legal questions with the United Kingdom outside the room and Ireland left in the invidious position of being the only effective common law jurisdiction left, with the other 26 member states. It would not be legitimate for me, as Minister for Justice, Equality and Law Reform, to depend on an Irish Taoiseach to raise such an issue under the emergency brake mechanism. That is not the kind of issue that is important enough for Ireland to entrust to a Taoiseach to raise with other member states. The United Kingdom was in a different position and certainly the defence of the common law could be a legitimate diplomatic objective for a British Prime Minister but it is certainly not one I would wish to foist on a future Taoiseach.

Having examined the whole question, we decided the best course for Ireland, at this stage, was to avail of the facility which Chancellor Merkel offered us, after she had offered it to the United Kingdom and to Prime Minister Brown. The Government went through this issue very carefully. We had a considered debate on the issue, examined two points of view on it and came to a conclusion as to where we should go on it. However, I wish to emphasise that we made a strong declaration, published in the treaty, underlining our firm intention to participate to the maximum possible extent in justice proposals and, in particular, those relating to police co-operation.

We also decided that the arrangements agreed will be reviewed three years after the treaty comes into effect. This will give us an opportunity to examine how the new arrangements operate in practice. While I think we made the right decision at this stage, it is possible to envisage circumstances in the future where it might be in our best interests to accede to qualified majority voting in this area. Suppose, for example, from a justice perspective, a group of member states emerged which was recalcitrant in regard to effective co-operation in matters of border control or essential security that affected our State and we believed we were in a diplomatic position to rally a majority of the member states behind us. In those circumstances it would clearly be in Ireland's best interests to participate in a qualified majority voting arrangement. We will, therefore, not totally close the door on that but we will ensure the right to say "yes" or "no", the essence of sovereignty, is preserved in this context for the reasons I outlined. I am satisfied the Government's position on justice matters is the best to ensure our legal system is protected and, at the same time, our strong co-operation with our European partners is maintained in tackling serious cross-border crime. I have made it clear to Commissioner Frattini since my appointment that Ireland is very much committed to co-operation in the justice area to the maximum extent.

I do not have a dogmatic view that the common law is superior to the civil law.

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